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Birthright Citizenship Back in Court & Newsom Sues Fox · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
0:08
Speaker 2: The legal battle over President Donald Trump's executive order to
0:12
Speaker 2: end birthright citizenship is far from over, despite the administration's
0:18
Speaker 2: major victory on Friday, when the Supreme Court limited an
0:22
Speaker 2: individual judges authority to issue nationwide injunctions. Within hours after
0:27
Speaker 2: the ruling, lawyers representing the pregnant undocumented women challenging the
0:33
Speaker 2: executive order filed amended complaints in Maryland and New Hampshire
0:38
Speaker 2: seeking class action relief in response to the Supreme Court's
0:42
Speaker 2: guidance in the opinion. Here are immigration lawyer George Escobar
0:46
Speaker 2: and Georgetown law professor Rupa Baticheria.
0:50
Speaker 3: We are very confident that we think we can get
0:53
Speaker 3: relief from this recurt and that that class relief will
0:55
Speaker 3: hold up on appeal all the way up to the
0:57
Speaker 3: Supreme Court. Because this order is unconstitutional, and because it
1:00
Speaker 3: is unconstitutional as to absolutely everyone that it would be
1:03
Speaker 3: applied to.
1:05
Speaker 4: We very much look forward to the day, as we
1:08
Speaker 4: continue to litigate this case, when every court, including the
1:11
Speaker 4: Supreme Court, agrees that the President cannot, by the stroke
1:14
Speaker 4: of a pen, take away the constitutional right of birthright citizenship.
1:18
Speaker 2: Trump's executive order will remain blocked for thirty days from
1:23
Speaker 2: the time of the Supreme Court's opinion, giving lower courts
1:26
Speaker 2: and the parties time to sort out the next steps.
1:30
Speaker 2: Joining me is immigration law expert Leon Fresco, a partner
1:33
Speaker 2: Holland and Knight. Leon. There were hearings before federal judges
1:38
Speaker 2: in Maryland and New Hampshire today over requests for class
1:42
Speaker 2: action relief tell us about the Supreme Court decision on
1:46
Speaker 2: Friday that led to this.
1:48
Speaker 1: So what the Supreme Court did was they ruled that
1:52
Speaker 1: from now on, not just an immigration but in other context,
1:55
Speaker 1: you couldn't get one district judge in a case where
1:59
Speaker 1: they're just a couple of plaintifts that file the lawsuits
2:03
Speaker 1: to issue a nationwide injunction that said, not just for
2:07
Speaker 1: these two plaine defts, but for everyone in the country,
2:10
Speaker 1: a particular executive order or a particular regulation is banned
2:15
Speaker 1: from going into effect. That's what was happening previous to
2:18
Speaker 1: this decision is there would be an executive order issued
2:22
Speaker 1: or a regulation issued, and people would go into court,
2:26
Speaker 1: and sometimes they go into court in various districts. They'd
2:29
Speaker 1: go in one district here, one district there, one district there,
2:33
Speaker 1: with the idea being that just that they could find
2:36
Speaker 1: one judge to issue a nationwide adjunction, then they could
2:40
Speaker 1: stop it for everybody in the nation, and there were
2:42
Speaker 1: a lot of these nationwide injunctions being issued. The Supreme
2:46
Speaker 1: Court ruled in a six to three decision that that
2:49
Speaker 1: violates the Judiciary Acts and that that's not what the
2:53
Speaker 1: courts have authority to do. They only have the authority
2:56
Speaker 1: to issue a junctive relief in a way that makes
3:00
Speaker 1: people in the case itself whole, but not anybody who's
3:04
Speaker 1: not in the case itself. And so what they said
3:08
Speaker 1: is what you can do is try to get a
3:11
Speaker 1: class certified. Pursuants to Rule twenty three of the Federals
3:15
Speaker 1: of a Procedure, you can get a class certified. But
3:19
Speaker 1: what's interesting about the class certification is if you don't
3:22
Speaker 1: get it for a nationwide class certification, then it will
3:25
Speaker 1: only apply to the specific circuit or state, whatever it
3:29
Speaker 1: may be. That's the topic of the class certification. But
3:33
Speaker 1: if you do get a nationwide injunction, then what happens
3:36
Speaker 1: is then you can't bring the case in several courts.
3:39
Speaker 1: Once the first court issues a nationwide class certification. That's
3:44
Speaker 1: the class for the entire nation. There can't be competing
3:47
Speaker 1: nationwide certified classes. There can only be one. And then
3:52
Speaker 1: that's the decision. So if they win, okay, then find
3:56
Speaker 1: the executive orders invalidated, and that one is likely to
4:00
Speaker 1: get to the Supreme Court. But if they lose, then
4:03
Speaker 1: maybe that case will never go to the Supreme Court
4:05
Speaker 1: because then everybody lost, and sure you'll go to the
4:08
Speaker 1: Court of Appeals, they'll get a chance to make the decision,
4:12
Speaker 1: but the Supreme Court may decide we don't want to
4:14
Speaker 1: take that case, and so you'll never get the nationwide
4:19
Speaker 1: decision that you might have gotten otherwise under the previous
4:22
Speaker 1: way things were being done.
4:24
Speaker 2: I mean. Also, it's not so easy to get a
4:28
Speaker 2: class certified.
4:29
Speaker 1: Is it. No, there's several problems. One timing. It takes
4:33
Speaker 1: a lot of time to get a class certified. You
4:35
Speaker 1: have to file emotion. You have to show that the
4:38
Speaker 1: lawyers in the case are qualified class action lawyers. You
4:41
Speaker 1: have to show that there's a numerosity, meaning there's a
4:44
Speaker 1: lot of people who fit in this group. You have
4:47
Speaker 1: to show that the group is common, that there's not
4:49
Speaker 1: individual facts. Then at least in the immigration world. In
4:53
Speaker 1: some of these cases, you can't even do a class
4:55
Speaker 1: action because the court's of issued decision saying no, these
4:59
Speaker 1: cases are fun the mentally person by person cases. So
5:03
Speaker 1: like for instance, in indefinite detention cases or detention cases
5:07
Speaker 1: in general, they say the individual has to challenge their
5:11
Speaker 1: own detention. This can't be done as a class. And
5:15
Speaker 1: so in those cases then you could even certify a
5:19
Speaker 1: class you still couldn't do it because they're not letting
5:22
Speaker 1: you do it for that particular issue. But in other cases,
5:24
Speaker 1: the issue is going to be designing the cost the expense,
5:28
Speaker 1: and then does this apply to just a specific group
5:32
Speaker 1: of people or does it apply to the whole nation.
5:35
Speaker 1: So all of that becomes now very challenging to determine.
5:38
Speaker 2: So, since plaintiffs in both Maryland and New Hampshire are
5:44
Speaker 2: seeking class action status, are the plaintiffs in a contest
5:48
Speaker 2: of sorts.
5:50
Speaker 1: Yeah, they're in a race to the courthouse now, and
5:53
Speaker 1: both are trying to get the individual judges the issue
5:55
Speaker 1: a class certification now the one benefit that they have
5:59
Speaker 1: that people won't have moving forward. They already know that
6:02
Speaker 1: these particular judges are inclined to say that the Birthright
6:06
Speaker 1: Citizenship Executive Order is illegal, so from their perspective, asking
6:11
Speaker 1: for a nationwide class certification is no risk. But moving forward,
6:16
Speaker 1: the advocacy groups, whether they're conservative or liberals, they're going
6:20
Speaker 1: to have to coordinate and say, is are you doing
6:23
Speaker 1: something too risky by asking for a nation wide class
6:26
Speaker 1: action because we don't know how this judge is going
6:29
Speaker 1: to rule, And so that's a very interesting issue that's
6:32
Speaker 1: going to come up moving forward here in the birthright
6:35
Speaker 1: citizenship it's not really an issue because the judges have
6:39
Speaker 1: already issued nationwide injunctions that are instead going to be
6:43
Speaker 1: disbanded now as a matter of the Supreme Court, but
6:46
Speaker 1: at least you know they're inclined to do it, So
6:49
Speaker 1: asking for a nationwide class certification here is less risky.
6:53
Speaker 2: Is the alternative plaintiffs going to judges in each of
6:58
Speaker 2: the eleven circuits and trying to get an injunction that
7:01
Speaker 2: applies to that circuit only correct.
7:04
Speaker 1: And the problem is you would need probably a circuit
7:08
Speaker 1: split or something to attract the Supreme Court to actually
7:12
Speaker 1: take the case in that situation. And so that's where
7:16
Speaker 1: this becomes a problem. Is if you had just one
7:19
Speaker 1: circuit saying that it was unconstitutional, but the other circuit's
7:24
Speaker 1: not or not saying anything. Who knows even when the
7:27
Speaker 1: Supreme Court would actually be interested in taking these cases.
7:31
Speaker 1: And that's something Justice Kavana said in his concurrent opinion
7:34
Speaker 1: is he said, hey, we've got to still decide these
7:38
Speaker 1: cases quickly because this lack of uniformity is going to
7:41
Speaker 1: be a major problem if we don't decide these cases.
7:44
Speaker 1: And so we'll see if the proof will be in
7:46
Speaker 1: the putting of the Supreme Court does this.
7:49
Speaker 2: And the Supreme Court gave the Trump administration thirty days
7:52
Speaker 2: to what to say, how it's going to do the
7:55
Speaker 2: birthright citizenship.
7:56
Speaker 1: Ban right exactly. They now have to figure out what
7:59
Speaker 1: they're going to do, what they're going to do in
8:01
Speaker 1: the court. Are they going to move to this alve
8:03
Speaker 1: these injunctions? What is their position going to be? And
8:06
Speaker 1: from my perspective, this to me, say what you want
8:09
Speaker 1: about the decision itself on nationwide injunctions, because it seems
8:14
Speaker 1: to me where people stand has depended on where they sit,
8:17
Speaker 1: and so sometimes the Democrats haven't liked them, sometimes the
8:21
Speaker 1: Republicans haven't liked them. That's a separate issue. But to me.
8:25
Speaker 1: Where I'm really confused by this decision is why the
8:30
Speaker 1: Court wouldn't have just said, look, we need to do
8:33
Speaker 1: briefing on this issue of birthright citizenship, because we can't
8:38
Speaker 1: possibly have a situation where we are allowing a circuit
8:43
Speaker 1: split or some other problem with birthright citizenship where some
8:47
Speaker 1: people can get it and others cannot depending on what
8:50
Speaker 1: state they are. They should have just decided that as
8:53
Speaker 1: part of this and the fact that they didn't seems
8:56
Speaker 1: to me to be one of the bigger problems with
8:58
Speaker 1: this decision.
9:00
Speaker 2: So now we're also waiting for the Supreme Court to
9:03
Speaker 2: take action on Trump's attempt to send eight migrants who
9:08
Speaker 2: are currently being held in Djibouti to South Sudan.
9:13
Speaker 1: Right well, the Supreme Court has said that third country
9:17
Speaker 1: deportations are now possible and that there doesn't need to
9:21
Speaker 1: be this extra hearing where you're allowed to go in
9:25
Speaker 1: and say, but don't send me to these other nations.
9:28
Speaker 1: That actually is a decision that's been issued now that
9:31
Speaker 1: was done without any guidance. So Supreme Court didn't say anything,
9:35
Speaker 1: but they listed a stay on an order that a
9:38
Speaker 1: district judge in Massachusetts gave where he was talking about
9:41
Speaker 1: all the process that needs to be given if you
9:44
Speaker 1: want to deport someone to a country that's not their
9:47
Speaker 1: home country. And so now that doesn't exist anymore. And
9:51
Speaker 1: so from that perspective, what happened was the District judge
9:55
Speaker 1: has now sort of in a sense said well, because
10:00
Speaker 1: that order wasn't very clear and just to say was listed,
10:03
Speaker 1: I'm going to come back and still say no, there
10:05
Speaker 1: is a process you need to give, and so I'm
10:09
Speaker 1: not going to allow these people to be deported again.
10:12
Speaker 1: And so now it's going to have to come back
10:14
Speaker 1: up for the Supreme Court to actually use words and
10:18
Speaker 1: describe exactly what they meant as opposed to just lifting
10:21
Speaker 1: the stay. This judge is really forcing the Supreme Court
10:25
Speaker 1: to come back and actually shut him down if they
10:28
Speaker 1: think what he's doing is wrong by ordering, you know,
10:32
Speaker 1: some process to be given to people who are going
10:35
Speaker 1: to be deported to a third country.
10:36
Speaker 2: Well, it's good at someone's doing that, because the Supreme Court,
10:39
Speaker 2: with all these orders that we've been talking about for months,
10:43
Speaker 2: rules something gives the bottom line but gives no guidance
10:47
Speaker 2: to the lower courts.
10:48
Speaker 1: Correct. This is going to be I think an inflection
10:51
Speaker 1: point for the Supreme Court. I mean they can make
10:54
Speaker 1: decisions obviously, of course that's their duty, They're right their obligations,
10:58
Speaker 1: but can they make them in a way that actually
11:01
Speaker 1: provides some guidance and some certainty in these very very
11:05
Speaker 1: important issues that are life basically altering for people, as
11:10
Speaker 1: opposed to just you know, listing stays and not providing
11:14
Speaker 1: any guidance, any reason, any anything. I think this is
11:18
Speaker 1: going to be a critical fundamental issue now.
11:20
Speaker 2: I know.
11:20
Speaker 1: The problem is there's many, many, many executive orders issues,
11:24
Speaker 1: and many many lawsuits, and everybody's human and there's nine
11:27
Speaker 1: justices and four law clerks for justices, so there's only
11:31
Speaker 1: so many things that humanity can tackle at one given time.
11:35
Speaker 1: But having said all of that, it really doesn't help
11:40
Speaker 1: the situation when people have no guidance. You know, if
11:43
Speaker 1: you get a decision that says make sure people have
11:45
Speaker 1: a chance to file, well, what does that? You know,
11:49
Speaker 1: those things sometimes cause more harm than good because nobody
11:52
Speaker 1: knows what any of those things mean or how to
11:54
Speaker 1: implement them, and everybody is litigating to get the best
11:58
Speaker 1: results possible. No one is just going to accept those
12:01
Speaker 1: decisions and say that it meant something less than what
12:05
Speaker 1: the maximalist approach that each litigating side is going to
12:09
Speaker 1: take in a particular case coming up.
12:11
Speaker 2: Why kilmar Abrego Garcia's attorneys asked a judge to keep
12:16
Speaker 2: him in jail. This is Bloomberg.
12:21
Speaker 1: You were listening to Bloomberg Law with June Grosseo from
12:25
Speaker 1: Bloomberg Radio.
12:27
Speaker 2: The Fifth Circuit heard arguments today on the proper procedures
12:31
Speaker 2: the Trump administration must follow to deport alleged members of
12:36
Speaker 2: the Venezuelan street gang trend Ragua under the seventeen ninety
12:40
Speaker 2: eight Alien Enemies Act. I've been talking to Immigration attorney
12:44
Speaker 2: Leon Fresco. Leon, give us the background on this case.
12:48
Speaker 1: So what happened was there were people in detention in
12:52
Speaker 1: Texas who were being charged under the Alien Enemy's eyes,
12:57
Speaker 1: and there was a lower court judge who said that
13:00
Speaker 1: the Alien Enemies Acts of the procedure that was being
13:03
Speaker 1: used there was an incorrect procedure and the government needed
13:07
Speaker 1: to get people time pursuean to the Supreme Court's decision
13:11
Speaker 1: saying that the government needed to get people tied to
13:14
Speaker 1: use the habeas process properly so that they could say, Hey,
13:19
Speaker 1: I'm not subject to this Alien Enemies Act. Either because
13:22
Speaker 1: I'm not the right person, or because the statute doesn't
13:27
Speaker 1: apply to me, or whatever it may be, the statue's unconstitutional,
13:31
Speaker 1: et cetera. And so those procedures the government has been
13:36
Speaker 1: fighting about, do we get people twenty four hours, do
13:38
Speaker 1: we get people ten days? What is the procedure that
13:42
Speaker 1: actually satisfies the Constitution in a particular case. And the
13:47
Speaker 1: problem is everybody's just making this stuff up as they
13:50
Speaker 1: go along, because the Supreme Court basically said, just get
13:54
Speaker 1: people time to do that, so they weren't very clear
13:57
Speaker 1: in what to do. And because they weren't very clear,
14:01
Speaker 1: we are stuck in these situations now where the Fifth
14:03
Speaker 1: Circuit's trying to determine what happens next in terms of
14:07
Speaker 1: what is the proper procedures.
14:09
Speaker 2: The most important thing is for them to determine how
14:12
Speaker 2: much time someone gets and access to alert.
14:15
Speaker 1: Correct from the moment that the government declares someone an
14:18
Speaker 1: alien enemy. How much time does a person have to
14:22
Speaker 1: file a habeas? What access do they need to be
14:25
Speaker 1: given to a lawyer to be able to file a habeas?
14:28
Speaker 1: You know, how long is that deportation order stayed for?
14:32
Speaker 1: Can the person have an appeal? All of that kind
14:35
Speaker 1: of stuff needs to be decided. The government basically wants
14:39
Speaker 1: to get people twenty four hours, and the plaint that
14:43
Speaker 1: side wants at least ten days to be able to
14:47
Speaker 1: child ad these which you know, seems reasonable from the
14:50
Speaker 1: standpoint that sometimes people get apprehended, they're in detention. It
14:53
Speaker 1: takes several days to try to figure out where the
14:55
Speaker 1: person even is much less to then get a lawyer
14:59
Speaker 1: and write the adeas complaint file it in court. So
15:02
Speaker 1: this definitely becomes a complicated issue.
15:06
Speaker 2: Right now. Let's say you're arrested and they want to
15:09
Speaker 2: deport you. I mean, how much notice do they have
15:11
Speaker 2: to give you if you're a regular deportee.
15:14
Speaker 1: Well, if you're a regular person that the government is
15:17
Speaker 1: trying to deport, when they detain you, they have to
15:20
Speaker 1: give you what's called a notice to appear. Then that
15:24
Speaker 1: notice to appear puts you in a deportation proceeding. Usually
15:28
Speaker 1: the next hearing, which is called a master calendar hearing,
15:32
Speaker 1: which is the equivalent of like an arraignment in criminal
15:36
Speaker 1: court where you plead guilty or not guilty. Here you
15:38
Speaker 1: would plead, you know, the portable or non deportable is
15:42
Speaker 1: usually in several days after that, I you're detained, and
15:45
Speaker 1: at that point you would ask the judge, Hey, I
15:47
Speaker 1: need time to find the lawyer, and the judge would
15:49
Speaker 1: give you time to find the lawyer, and that could
15:51
Speaker 1: be a couple of weeks, thirty days, et cetera, and
15:55
Speaker 1: then you know, you'd have a new hearing. Go from
15:58
Speaker 1: that perspective, there's much more time given. But what their
16:03
Speaker 1: government is trying to do in these alien enemies that
16:05
Speaker 1: cases is to skip all of that and say that
16:08
Speaker 1: because you're an alien enemy, you don't get any of
16:10
Speaker 1: that process. You can just be apprehended and put on
16:14
Speaker 1: a plane to some country. And so that's the question
16:17
Speaker 1: is is if you're trying to skip that whole process,
16:21
Speaker 1: how long do you have to get someone to say, hey,
16:23
Speaker 1: you got the wrong person? Why am I being put
16:26
Speaker 1: on this plane? So that's the question is how long
16:29
Speaker 1: do you have in that scenario.
16:30
Speaker 2: And also I've heard other lawyers say that it's sometimes
16:34
Speaker 2: difficult to figure out where your client is being held.
16:37
Speaker 1: Correct. When people are apprehended, they can be placed anywhere
16:40
Speaker 1: in the United States by ice. There is a thing
16:43
Speaker 1: online called the detainee locator, but sometimes it takes two
16:47
Speaker 1: or three days for the person's name to even get
16:49
Speaker 1: uploaded to that detainee locator. So if someone's been detained,
16:54
Speaker 1: you may not know where they are for two or
16:55
Speaker 1: three days. And then in order to get a lawyer
16:58
Speaker 1: to that detention facility, which is often in a remote location,
17:03
Speaker 1: in order to sign all the paperwork needed to file
17:05
Speaker 1: the lawsuit ends up being quite onerous. So if you
17:08
Speaker 1: only had twenty four hours to file the havieas, how
17:12
Speaker 1: could someone, potentially someone who doesn't even speak English, file
17:15
Speaker 1: a federal court lawsuit within twenty four hours. That's the
17:19
Speaker 1: question that the courts are going to have to consider here.
17:21
Speaker 2: The Fifth Circuit is the most conservative circuit in the country,
17:25
Speaker 2: so I take it that this is the worst circuit
17:28
Speaker 2: to be hearing this from the viewpoint of immigrants.
17:30
Speaker 1: Well correct, This wasn't a strategic decision by the plaintiffs.
17:34
Speaker 1: The plaintiffs happened to be detained in Texas, and so
17:37
Speaker 1: the last Supreme Court decision said you have to file
17:40
Speaker 1: the habeas in the location where the person is detained,
17:44
Speaker 1: because in that case they had had the habeases in
17:47
Speaker 1: front of Judge Bosburg in DC and Judge Bohsburg in
17:52
Speaker 1: DC was ruled not to have jurisdiction, so they have
17:55
Speaker 1: to file the habeas in the Southern District of Texas.
17:58
Speaker 1: They were actually successful in the Southern District affects US
18:02
Speaker 1: to get that judge to say that the Alien Enemies
18:04
Speaker 1: Act required more notice than was unconstitutional. But now the
18:08
Speaker 1: notice issue goes to the Fifth Circuit, and now the
18:13
Speaker 1: Fifth Circuit is going to be in a more conservative
18:15
Speaker 1: posture than that individual district judge, and so the question
18:20
Speaker 1: is what they're going to do there.
18:21
Speaker 2: Let's turn to a deportation case that is widely known
18:26
Speaker 2: Kilo Abrego Garcia, who was wrongly deported to El Salvador
18:31
Speaker 2: and is back in the country but in jail. So
18:36
Speaker 2: his lawyers made an unusual request on Friday to keep
18:40
Speaker 2: him in criminal custody until July sixteenth, when a judge
18:45
Speaker 2: has scheduled a hearing. It's not often that you see
18:49
Speaker 2: a person's lawyer saying keep him in prison.
18:52
Speaker 1: Well, I think the concern that Abrego Garcia has is
18:56
Speaker 1: if he is released from criminal custody, then he will
18:59
Speaker 1: be played an ice custody, and ISA is saying that
19:03
Speaker 1: they now want to deport him to some other third country,
19:07
Speaker 1: which they have the right to do, because a Brago
19:10
Speaker 1: Garcia does have a removal order, but it's a removal
19:13
Speaker 1: order that prevents him from being sent to al Salvador,
19:16
Speaker 1: but not from another country. And so theoretically speaking, a
19:20
Speaker 1: Brago Garcia can be sent to a third country. And so,
19:24
Speaker 1: pursuing again to this Supreme Court decision at the moment,
19:28
Speaker 1: says that there doesn't need to be these extra protections
19:32
Speaker 1: for third country removals, that he could be sent anywhere
19:35
Speaker 1: to any country in the world other than Alsavador. And
19:39
Speaker 1: so he's saying, rather than being sent to any such
19:43
Speaker 1: third country, he'd rather remain in US criminal detention to
19:47
Speaker 1: see if he can figure out a way to ultimately
19:51
Speaker 1: come up with some legal strategy that allows him to
19:53
Speaker 1: remain in the United States.
19:55
Speaker 2: Why would the government rather deport him than try him qui.
20:00
Speaker 1: The problem is if he is in criminal court and
20:03
Speaker 1: he's been given a bond, which means he can actually
20:06
Speaker 1: walk around as a free man while this case is pending,
20:10
Speaker 1: that's the nightmare scenario for the government right now. They
20:14
Speaker 1: didn't want any scenario where he was actually walking around
20:18
Speaker 1: in America again, and so their preferred scenario was that
20:23
Speaker 1: he be criminally prosecuted, detained, and then serve his sentence,
20:27
Speaker 1: and then remove But if they can't achieve that scenario
20:31
Speaker 1: because he will be allowed to actually walk around free
20:34
Speaker 1: for a while while this case is pending, then for them,
20:38
Speaker 1: the better scenario is just to deport him and not
20:41
Speaker 1: criminally prosecute him, because they just will not abide by
20:45
Speaker 1: a scenario where he's actually free in walking around.
20:49
Speaker 2: The Trump administration has agreed to release from prison a
20:53
Speaker 2: three time felon who had fired shots into a Texas community.
20:58
Speaker 2: He's been deported five times. He was going to be
21:01
Speaker 2: deported a sixth time in exchange for his cooperation in
21:05
Speaker 2: the prosecution of Garcia. Garcia has never been convicted of
21:10
Speaker 2: a crime, So why release a convicted felon just to
21:15
Speaker 2: get testimony against him.
21:17
Speaker 1: I mean, at the end of the day, if they
21:19
Speaker 1: don't have any other evidence that links Abrego Garcia to
21:24
Speaker 1: human trafficking, and this is the only person that can
21:27
Speaker 1: link into human trafficking, then they have to make a
21:30
Speaker 1: strategic decision as to what would incentivize this person to
21:35
Speaker 1: give this testimony. And if this was the only thing
21:38
Speaker 1: that would incentivize this person to give this testimony. Then
21:42
Speaker 1: they had to do it. Just like you know in
21:43
Speaker 1: mafia cases, you do this kind of thing all the time,
21:47
Speaker 1: where you get people with this protection or other things
21:50
Speaker 1: in order to testify against other co conspirators. In the
21:54
Speaker 1: immigration world, that this does happen, where people get immigration
21:58
Speaker 1: status in exchange for their testimony. It's just a question
22:02
Speaker 1: of whether here the harms outweigh the benefits in the
22:07
Speaker 1: sense of whether Abrego Garcia is such a danger to
22:11
Speaker 1: the society that it justifies releasing this other person who
22:15
Speaker 1: is dangerous to the society. So that's the question the
22:19
Speaker 1: government needs to answer. And we'll see. Maybe they don't
22:22
Speaker 1: end up getting around to all of this because they
22:25
Speaker 1: just end up deporting Abrego Garcia now to a third country.
22:30
Speaker 1: We'll see how that happens. But if they actually have
22:32
Speaker 1: to go through a criminal trial, then thou have to
22:35
Speaker 1: make this decision about whether this individual is now so
22:40
Speaker 1: important that they can justify keeping them in the country
22:44
Speaker 1: released freely in order to put a Brago Garcia into prison.
22:49
Speaker 2: Because I assume that the Abrego Garcia case is so
22:54
Speaker 2: well known now across the country that the Trump administration
22:58
Speaker 2: has a lot at stake in actually deporting him or
23:03
Speaker 2: convicting him.
23:04
Speaker 1: Correct, they do not want him free walking around the
23:07
Speaker 1: United States. And so either whether it'll be by deportation
23:11
Speaker 1: or by criminal prosecution, they want it either detained or deported.
23:15
Speaker 1: And if this is the top scenario, then you will
23:19
Speaker 1: have to do what you can to accomplish that scenario.
23:22
Speaker 1: So that would include potentially giving a star witness the
23:26
Speaker 1: incentive that is needed to be the witness, But obviously
23:29
Speaker 1: that's something that will be able to be impeached in
23:31
Speaker 1: a trial. If there is a trial, they'll be able
23:35
Speaker 1: to say, hey, you know, are you just making all
23:37
Speaker 1: of this up because you're getting this extraordinary immigration benefit
23:41
Speaker 1: and that's what we're going.
23:42
Speaker 2: To have to see and leon the witness, Jose Ramon
23:46
Speaker 2: Hernandez reyes he was going to be deported a sixth time.
23:50
Speaker 2: Do you often see people coming into the country illegally
23:55
Speaker 2: five six times?
23:57
Speaker 1: So it depends what the government wants to do, because
24:00
Speaker 1: they have the authority to prosecute someone who's re entered
24:03
Speaker 1: after being deported and putting them in prison for quite
24:07
Speaker 1: a large amount of time, or they can just execute
24:10
Speaker 1: the deportation order without such a prosecution. So if they
24:14
Speaker 1: do that then yes, you can have people deported three,
24:18
Speaker 1: four or five times, because all they have to do
24:20
Speaker 1: is what's called reinstate the previous deportation order. They don't
24:24
Speaker 1: have to even get a new one. It's literally a
24:27
Speaker 1: form that gets done that allows a reinstatement of the
24:31
Speaker 1: prior order and the person is just deported again. So
24:34
Speaker 1: every time a deportation order is reinstated, that counts as
24:37
Speaker 1: another order. But what is rare is you don't usually
24:42
Speaker 1: see that within the context of the government continuing to
24:45
Speaker 1: allow it over and over and over and over and
24:47
Speaker 1: over again without charging the person for re entering as
24:51
Speaker 1: a deported person. At some point they say this has
24:54
Speaker 1: to stop, so they'll put the person in prison, and
24:58
Speaker 1: they could be several years that you could put the
25:00
Speaker 1: person in prison for re entering as a deported person.
25:04
Speaker 1: And so you know, why wasn't that done earlier in
25:06
Speaker 1: this process?
25:07
Speaker 2: Thanks so much, Leon. There is immigration news every day
25:11
Speaker 2: these days. That's Leon Fresco of Holland and Knight coming up.
25:15
Speaker 2: The California governor sues Fox This is Bloomberg. California Governor
25:22
Speaker 2: Gavin Newsom is suing Fox News over its coverage of
25:26
Speaker 2: a conversation he had with President Donald Trump about protests
25:31
Speaker 2: in Los Angeles. He accuses the network of deliberately misrepresenting
25:36
Speaker 2: comments to claim that Newsom lied about the phone conversation.
25:40
Speaker 2: Newsom is seeking seven hundred and eighty seven million dollars
25:44
Speaker 2: in damages, citing a similar defamation lawsuit Fox News settled
25:49
Speaker 2: with Dominion Voting Systems in twenty twenty three. Fox News
25:53
Speaker 2: has responded that the lawsuit is a transparent publicity stunt
25:57
Speaker 2: and frivolous, and plans to def end it vigorously and
26:01
Speaker 2: seek its dismissal. Join me is defamation lawyer Jeff Lewis
26:07
Speaker 2: Jeff tell us about the basics of Newsom's complaint against
26:11
Speaker 2: Fox Well.
26:13
Speaker 5: The gist of the lawsuit is that Fox News misrepresented
26:16
Speaker 5: a couple of calls between Trump and Newsom preceding in
26:21
Speaker 5: the deployment of the National Guard, and Fox News tried
26:25
Speaker 5: to paint a picture that Newsom was lying about not
26:28
Speaker 5: being called by President Trump. That's the gist of a lawsuit,
26:31
Speaker 5: and Newsom is seeking millions of dollars in damages for
26:35
Speaker 5: defamation per se.
26:37
Speaker 2: So now he's alleging that this was deliberate on Fox's
26:42
Speaker 2: behalf that they made deceptive video edits and false statements.
26:47
Speaker 5: Yeah, and by the way, they have to allege that
26:49
Speaker 5: was intentional because Newsom is a public figure, he's a
26:53
Speaker 5: political figure, and so under New York Times versus Sullivan,
26:57
Speaker 5: he has the burden approving not only that Fox News
26:59
Speaker 5: said some fault, but they said so with actual malice,
27:03
Speaker 5: meaning they knew what they were doing, they knew what
27:05
Speaker 5: they were saying was false, and so there has to
27:07
Speaker 5: be allegations of intentionality or this case will be dismissed.
27:11
Speaker 2: NUSIM is seeking seven hundred and eighty seven million dollars,
27:15
Speaker 2: and that number seems to be symbolic because it is
27:19
Speaker 2: about the same amount that Fox News paid to Dominion
27:22
Speaker 2: Voting Systems in twenty twenty three to settle a separate
27:26
Speaker 2: defamation lawsuit over the network's election coverage.
27:31
Speaker 5: The Fox News lawsuit and settlement with Dominion figures prominently
27:37
Speaker 5: in the storytelling of this complaint. You read the first
27:39
Speaker 5: few paragraphs, and that's part of this piece of trying
27:43
Speaker 5: to demonstrate that Fox News hasn't learned a lesson and
27:45
Speaker 5: it's acting intentionally to try to get past the actual
27:49
Speaker 5: malice standard.
27:50
Speaker 2: And in the dominion case, discovery revealed some information that
27:55
Speaker 2: Fox would rather have kept hidden, and could that happen
27:59
Speaker 2: again year?
28:00
Speaker 5: In discovery, absolutely, there will be text messages, communications about
28:06
Speaker 5: this interchange and how, for example, how Fox News vetted
28:11
Speaker 5: this story and did anything to verify what President Trump
28:15
Speaker 5: was saying on his social media about the timing of
28:18
Speaker 5: these calls. So there will be discovery, and the discovery
28:21
Speaker 5: can prove to be embarrassing.
28:23
Speaker 2: Are there hurdles here with questions about news and commentary
28:27
Speaker 2: and whether you're shading the truth or just making a
28:32
Speaker 2: comment on a political figure.
28:37
Speaker 5: Yeah, that's a great question, because in this case he
28:40
Speaker 5: has tried to essentially allege the towort of false light,
28:45
Speaker 5: which is related to defamation, and false light is taking facts,
28:50
Speaker 5: taking clips and editing them suspiciously to place you in
28:53
Speaker 5: a negative light, to suggest you're either lying or that
28:57
Speaker 5: you aren't telling the truth. That's the just of what
29:00
Speaker 5: Governor Newsom has alleged here. And so in a traditional
29:04
Speaker 5: defamation case, you're looking for a false statement of fact,
29:08
Speaker 5: something that's provably false, and here it's more about through
29:13
Speaker 5: deceptive editing, whether or not Newsom was shown by Fox
29:17
Speaker 5: News to not know what he's talking about or be
29:20
Speaker 5: inaccurate in terms of his recollection of phone calls with
29:24
Speaker 5: President Trump.
29:25
Speaker 2: It does seem like there is evidence there was just
29:29
Speaker 2: a sixteen minute phone call between Newsom and Trump and
29:32
Speaker 2: that it took place either late on June sixth, California
29:37
Speaker 2: time or early on June seventh on the.
29:40
Speaker 5: Yeah, but let me just say this, truth is a
29:43
Speaker 5: defense in defamation law, and you don't have to be
29:46
Speaker 5: exactly right on all the details. There's plenty of cases
29:48
Speaker 5: out there that say being substantially true or close enough
29:52
Speaker 5: is good enough in the world of defamation. And so
29:56
Speaker 5: I don't know if the gap or the inaccuracy of
29:59
Speaker 5: saying it was a day ago as opposed to three
30:01
Speaker 5: days ago will be enough to convince the court to
30:04
Speaker 5: let this escape emotion to dismiss It's kind of a
30:06
Speaker 5: weak defamation claim if you asked me.
30:09
Speaker 2: The Chiron did read Gavin Lyde about Trump's call.
30:14
Speaker 5: Yeah, Well, and what Fox News showed was a truth
30:18
Speaker 5: social post by President Trump with the call log showing
30:22
Speaker 5: that there was a phone call. And the question is
30:24
Speaker 5: will that be enough? Will that be close enough to
30:27
Speaker 5: the truth to allow the lawsuit to be dismissed, or
30:31
Speaker 5: will Newsome be able to say, well, this casts me
30:34
Speaker 5: in a false life, it makes me look like I
30:35
Speaker 5: don't know what I'm talking about, and tell us.
30:37
Speaker 2: About the cause of action under California's unfair competition law.
30:42
Speaker 5: That's not going anywhere. Let me tell you, this is
30:45
Speaker 5: a law that he's usually used to protect consumers against
30:48
Speaker 5: false advertising and claims like that, and it's not going
30:52
Speaker 5: anywhere because under California law, you're not entitled to damages,
30:56
Speaker 5: you're entitled to restitutions. So if gouvernor Newsom could somehow
30:59
Speaker 5: prove that Fox News made a buck or two or
31:02
Speaker 5: ten bucks off of this story, tie it directly that story.
31:06
Speaker 5: The best Governor Newsom could hope for is to get
31:08
Speaker 5: restitution of those laws of those profits. But that's not
31:12
Speaker 5: going to be proven here that case, that claim is
31:13
Speaker 5: going to be dismissed.
31:15
Speaker 2: Apparently that the lawyers offered to drop the lawsuit. If
31:19
Speaker 2: Fox retracts the comments and apologizes. Is that a good
31:23
Speaker 2: deal for Fox?
31:24
Speaker 5: It is a good deal if all you care about
31:27
Speaker 5: is paying money in terms of legal fees for defense.
31:31
Speaker 5: It's a bad deal in terms of Fox News might
31:33
Speaker 5: enjoy the exposure Fox News might enjoy being the antagonist
31:38
Speaker 5: to Governor Newsom, So there are non monetary issues here.
31:43
Speaker 2: This is sort of echoing or copying Trump's strategy of
31:49
Speaker 2: suing the media. I mean, he has that suit alleging
31:53
Speaker 2: that CBS network edited an interview with Kamala Harris to
31:58
Speaker 2: favor her. And that's got to be a difficult case
32:01
Speaker 2: to prove.
32:03
Speaker 5: Yeah, again, because of the issues involving a public figure
32:07
Speaker 5: having to prove actual malice and it's more of a
32:10
Speaker 5: false light as opposed to a provably false fact, and
32:13
Speaker 5: those are all hard things to prove, and a defamation claim.
32:16
Speaker 5: Defamation claims are really hard to win.
32:18
Speaker 2: Prior to Trump, have there been a lot of political
32:21
Speaker 2: figures that suit for defamation over unfavorable coverage.
32:25
Speaker 5: Well, in California, you see a lot of lawsuits against
32:29
Speaker 5: political opponents things that are said during the heat of campaigns.
32:33
Speaker 5: But usually those lawsuits are directed at your political opponent,
32:36
Speaker 5: not the media, not the person holding the microphone.
32:40
Speaker 2: How did those suits end up because I can imagine
32:43
Speaker 2: almost every politician could sue the opposition.
32:46
Speaker 1: That's right.
32:47
Speaker 5: Well, in California, we have a very robust anti slap
32:50
Speaker 5: law which allows defendants to quickly file emotion to get
32:53
Speaker 5: these kinds of lawsuits dismissed, and they're quickly vetted and
32:56
Speaker 5: either disposed of or settled. They rarely go to try.
33:00
Speaker 5: One interesting note here, California has one of the most
33:02
Speaker 5: powerful pro defendant anti slap laws in the nation. Governor
33:07
Speaker 5: Newsom sued in Delaware, perhaps to avoid application of that
33:12
Speaker 5: anti slap law and to avoid an early testing of
33:14
Speaker 5: the evidence in this case.
33:16
Speaker 2: Is this an uphill battle for him to survive motion
33:19
Speaker 2: to dismiss?
33:20
Speaker 5: It is an uphill battle both in terms of the
33:23
Speaker 5: actual malice standard, the issue of whether or not there's
33:26
Speaker 5: a provably false fact, you know, where's the lie, and
33:30
Speaker 5: whether or not he could prove any damages. Now he's
33:32
Speaker 5: alleged something called defamation per se, And if you go
33:35
Speaker 5: on the air and you accuse someone of being a
33:37
Speaker 5: thief or a murderer, that's defamation per se. You don't
33:40
Speaker 5: have to prove damages. The lie here that was alleged
33:45
Speaker 5: was some confusion over a phone call. I don't know
33:48
Speaker 5: that that meets the legal definition of defamation per se.
33:50
Speaker 5: So that means Governor Newsom has to prove some sort
33:53
Speaker 5: of damages Flowing from this statement.
33:55
Speaker 2: He claims that Fox harms his reputation and may even
33:59
Speaker 2: cost him vote in the future. One wonder is how
34:02
Speaker 2: many Fox viewers would actually be voting for Newsom in
34:05
Speaker 2: any event.
34:06
Speaker 5: Yeah, in the law, there's this requirement called approximate, cause
34:09
Speaker 5: you got a draw a line between the harmful act
34:12
Speaker 5: and actual damages. And in defamation per se, you don't
34:16
Speaker 5: have to draw that line. But in this case, I
34:18
Speaker 5: think the hard pressed to show any person who actually
34:22
Speaker 5: saw this broadcast would not have already had an opinion
34:26
Speaker 5: previously about Governor Newsom and that opinion somehow changed. And
34:30
Speaker 5: by the way, Governor Newsom's turned out as an announced
34:33
Speaker 5: that he's running for president. So I'm not sure what
34:35
Speaker 5: vote he's talking about.
34:36
Speaker 2: I think we know which vote. And hours after filing
34:40
Speaker 2: the lawsuit, Newsom highlighted it in an email to supporters
34:45
Speaker 2: that sought donations to his political action committee. Thanks so much, Jeff.
34:51
Speaker 2: That's defamation attorney Jeff Lewis. And that's it for this
34:55
Speaker 2: edition of The Bloomberg Law Show. Remember you can always
34:58
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35:01
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